New protection for pubs


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Since the Localism Act 2011, public houses have been the most popular use of a building/land to be protected as an Asset of Community Value (ACV). A list of ACVs is kept by each local authority. If land is added to the list it remains on it for five years. During that time the owner cannot sell it without giving notice of its wish to do so. If a community interest group wishes to be treated as a  potential bidder for the land the owner must allow six months for the community group to make a bid. There is no right for them to buy, only the right to bid. The bar to obtaining ACV listing is relatively low. The requirements for achieving such status can be satisfied in either of two ways:

  • The first test requires that two conditions are met. First, there must be an actual current use of the building or other land that is not an ancillary use and which furthers the social wellbeing or social interests of the local community. Second, it must be realistic to think that there can continue to be non-ancillary use of the building or other land which will further (whether or not in the same way) the social wellbeing or social interests of the local community.
  • The second test only falls to be considered if the first test is not satisfied. Again, there are two conditions which need to be met for the second test to be satisfied. First, there must have been a time in the recent past when an actual use of the building or other land that was not an ancillary use furthered the social wellbeing or interests of the local community. Second, it must be realistic to think that there is a time in the next five years when there could be non-ancillary use of the building or other land that would further (whether or not in the same way as before) the social wellbeing or social interests of the local community.

The ACV status of property is a material planning consideration and can therefore be a reason for refusing an application for planning permission for change of use or demolition. In 2015 any public house nominated or listed as an ACV had its permitted development rights removed for change of use or demolition. Now, from 23 May 2017 the Government has introduced further protection from development for public houses. Permitted development rights have been removed, so in most cases a developer now has to apply for planning permission to change any pub (whether nominated/listed as an ACV or not) to a shop, restaurant/café, school, temporary flexible use or to demolish it. This would appear to make it more  difficult to redevelop a public house.

However, a number of appeals recently have allowed pub loss. In Derbyshire, for example, conversion of a Derbyshire country pub to a house has been allowed after an inspector found the use of the  designated asset of community value as a pub was no longer financially or commercially viable. The inspector in the case attached limited weight to the designation of the premises as an ACV, given the threshold for designating an ACV was relatively low.

In another appeal in West Midlands the ACV status of a pub failed to stop planning permission being granted by the inspector for a change of use to a convenience store. The inspector found that there were no plans to use the right to bid and that there were a number of other pubs in the vicinity which provided for customers’ day-to-day needs.

Conclusion

The additional protection afforded to all pubs will inevitably make it harder for developers and owners to enhance a building’s value by changing the use. However,  it should be noted that designation as an ACV is not an absolute bar to development and in a number of cases planning permission has been granted, although often this is by a planning inspector on appeal rather than by a local planning authority.

For further information, please contact Mark Harnett, Partner, Fladgate LLP (mharnett@fladgate.com)

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